Daily Comment on News and Issues of Interest to Michigan Lawyers

April 2012

04/27/2012

In "New Look at an Old Memo Casts More Doubt on Rehnquist," Adam Liptak reports on new information concerning an infamous memo written by William Rehnquist when he was a law clerk to Justice Robert Jackson. The memo said, “I realize it is an unpopular and unhumanitarian position, for which I have been excoriated by ‘liberal’ colleagues, but I think Plessy v. Ferguson was right and should be reaffirmed.” After Newsweek revealed the memo just before Rehnquist's confirmation hearing in 1971, Rehnquist explained that the memo did not represent his own views but was instead a statement of Justice Jackson’s tentative views for Jackson's own use. Liptak's story calls attention to new research published in an article in The Boston College Law Review that casts doubt on that explanation. A must-read for legal history buffs.

When a hackathon comes to law school, you know that radical change in legal education isn't just an academic fantasy. The classic hackathon involves computer programmers and other tech-types getting together for a marathon session to collaborate in a problem-solving frenzy. Brooklyn Law School adapted the concept to its Incubator and Policy Clinic. Here's the result:

Some of you may be wondering why we haven't had a "The Onion for Lawyers" post in a while. What with The Onion's propensity for using the f-word in most headlines and an apparent disinterest in legal issues, pickings have been slim. To tide you over, here are a few non-legal but PG-rated items from the latest edition:

04/26/2012

Bravo, John Graves. Between admission to law school to the University of Michigan Law School forty years ago and his enrollment there three years ago, he packed in a full career in education, including as superintendent for five school districts, but he always felt the "pull of the law school." Ann Arbor.com has the story.

A broad-based Judicial Selection Task Force co-chaired by Michigan Supreme Court Justice Marilyn Kelly and senior federal circuit judge (and former Michigan Supreme Court justice) James Ryan issued its recommendations today, concluding a process that began in December 2010. Contrary to the expectations of many, the Task Force did not call for changing Michigan's selection process to a non-elective process. Instead, the Report calls for a number of measures to reform the existing process.

The first responses to the oral argument yesterday on Arizona v. United Statesare pretty uniform -- the Justices appear skeptical of the government's argument that the state law would unconstitutionally infringe on the federal government's immigration authority. The Wall Street Journal, the New York Times, and the Washington Post all report that the Court seemed inclined to uphold the requirement that police determine the status of anyone they stop if they believe the person to be an illegal immigrant. Justice Scalia's aggressive questioning, such as the questions below, got particular attention:

The state has no power to close its borders to people who have no right to be there?”

“What does ‘sovereignty’ mean if it does not include the ability to defend your borders?”

“Are you objecting to harassing the people who have no business being here? Surely you’re not concerned about harassing them.”

“We have to enforce our laws in a manner that will please Mexico?”

Lyle Denniston's analysis at ScotusBlog predicted that the Court will come out somewhere between Scalia's view and the government's:

At the end of the argument in Arizona v. United States(11-182), though, the question remained how a final opinion might be written to enlarge states’ power to deal with some 12 million foreign nationals without basing that authority upon the Scalia view that states have a free hand under the Constitution to craft their own immigration policies. The other Justices who spoke up obviously did not want to turn states entirely loose in this field. So perhaps not all of the four clauses would survive — especially vulnerable may be sections that created new state crimes as a way to enforce federal immigration restrictions.

President Barack Obama has nominated Terrence Berg of Detroit to the U.S. District Court in Detroit. Berg served as interim U.S. attorney after the appointment of former U.S. Attorney Stephen Murphy was appointed to the federal bench in 2008, until 2010 when Barbara McQuade was sworn in as U.S. attorney. Wayne County circuit judge Gershwin Drain is also awaiting Senate confirmation to the Eastern district bench.

A couple of suggestions not covered on this blog heretofore can help tame the unruly beast of e-mail. They appear in Law Practice, May/June 2012 at 63. The author leads into one practical suggestion – send fewer e-mails – with some data. “For every five emails you jettison into cyberspace, you will receive three responses.” Hence, she writes, for every message you don’t write, you will reduce the flow back by 10%. Simple, but effective.

The other tip, strengthen the subject line, has a new wrinkle. A clear subject line helps your reader, to be sure, but it can also help you make the body of your message more concise. Crystallize the gist of the e-mail in your header and you will have thought more clearly about what you write below it.

Easy answer: to determine guilt or innocence and impose a penalty if guilt is found. This op-ed piece in the New York Times on the trial of Anders Breivik, the Norwegian mass murderer, reminds us that sometimes something much more profound is taking place. Its author, novelist Karl Ove Knausgaard, like most of his countrymen, was numbed by the media coverage of the massacre and its aftermath, but to Knausgaard and perhaps his countrymen the trial has brought new insights, and signifies hope for justice, for Norway and for Breivik himself:

What [Breivik] perhaps dimly realizes as he lies in the cell is what will happen when the trial shifts from him and his picture of the world, this rigorously maintained fiction, to the 77 victims. One by one, an account will be given of their deaths. The dead bodies he left scattered on the street, around the forest and the rocks, in the water and on the shore, the weight of all these bodies, and not just bodies but also the names — the naming of which will bring memories back to loved ones of laughter, voices and shouts, joy and sorrow, but first and foremost of hope now lost — when this weight makes its impact, nothing of what Breivik has said will be of any importance.

His testimony, his ideas, his conception of the world will turn to nothing. Possibly, he will be able to resist even that, but the trial is for us, not for him. We shall see him as he is, a human being like you and me, and we shall see what he has done. And we shall try to understand. The dangerous thing is the distance, the confusing of the picture of the world with the real world, the turning away from the other person. And it is this that the court case, with its emphasis on formalities and its equality of treatment, confronts. Our task is to witness it, to allow the weight of reality to break through the picture and correct it. And never, never the reverse.

04/25/2012

The special master appointed by the Michigan Supreme Court in the Judicial Tenure Commission (FTC) case against Judge Sylvia James has issued a report upholding several of the charges brought by the JTC. Its conclusion:

The Master concludes that the Examiner has proven by a preponderance of the evidence: Count I A, B, and C, Count II A and C, Count III C, and Count IV 1. Respondent failed to diligently discharge her administrative responsibilities. She ignored the advice of trained financial professionals that all the Court‟s financial practices should comply with generally accepted accounting principles (GAAP). She failed to establish policies requiring documentation of expenditures of all public moneys. Despite being told that her actions were improper, she continued to authorize donations from the CSP account to charitable, civic, fraternal and religious organizations. She failed to ensure that her magistrate was qualified for that position and she rehired her niece in disregard of the clearly applicable anti-nepotism policy. Her actions demonstrated her lack of respect for the law.

Download the full report here. The Free Press has a story. Judge James has been suspended with pay pending the resolution of Judicial Tenure Commission charges against her.